A massive crowd gathered at Town Hall, Bangalore on 19th December 2019 to peacefully protest against CAA/NRC/NPR and the arrests of hundreds who decided to exercise their Fundamental Right of Expression. This despite Bangalore Police imposing Sec. 144 the previous night, and canceling prior permission granted for the protest hours before,

Public Interest Litigations were filed in the morning of 19th December 2019 challenging the imposition of Sec 144 of The Code of Criminal Procedure, 1973,[1] across Bangalore. The impugned order was issued late in the night of 18thDecember by Mr. Bhaskar Rao, IPS, Bangalore Police Commissioner and effective till midnight of 21st December 2019[2]. The implication of this order is that curfew is declared across the city, and assembly of five or more persons is prohibited. The PILS came up before the Hon’ble Chief Justice Oka and Hon’ble Justice Yerur.

The core issue of the matter is that just hours before clamping curfew across the city, the very same Police had granted permission to Dalit Sangarsh Samithi (DSS), a constituent of Hum Bharat Ke Log – Citizen Action Against CAA, a network of progressive groups, peoples movements, student groups, trade unions, etc., to peacefully conduct public protest on the morning of 19th December against the Citizenship Amendment Act, 2019 (CAA) and National Citizenship Register (NRC) at Bangalore’s Town Hall. This approval (to DSS) had been granted after due process followed under the Licensing and Controlling of Assemblies and Processions (Bangalore city) Order, 2008. Soon as the approval was received, there was widespread communication by the organisers, including through the internet, asking progressive people who want to uphold the Constitutional value of Equality of all regardless of caste, creed, religion, etc., to join the protest against CAA/NRC.

The three Public Interest Litigations filed in the Karnataka High Court challenge the Commissioner’s decision as arbitrary, unconstitutional and effectively targeting dissenters to the Government’s actions on CAA/NRC. The litigants are Prof. M. V. Rajeev Gowda, Member of Parliament (Rajya Sabha) in PIL WP No. 52738/2019; Ms. Sowmya Reddy, Member of Karnataka Legislative Assembly, in PIL WP No. 52731/2019; Mr. Leo F. Saldanha of Environment Support Group, Ms. Kavitha Lankesh, Film Director and Writer, Ms. M. D. Pallavi, renowned singer and actor, Prof. Ramdas Rao, and Peoples Union for Civil Liberties, in PIL WP No. 52718/2019. Appreciating the urgency of the appeal, the case was posted for hearing on the morning of 20th December.

Patriotic sloganeering rent the air, as thousands gathered to sing songs and shout slogans about Unity in Diversity

Key content of the Petitions:

The Petitioners have contended that the Police Commissioner’s Sec 144 order exclusively targets those opposed to the CAA/NRC. This is evident from the Proposal of the order where it is claimed the imposition of curfew is necessary “to prevent any incidents affecting public peace and order from any protests/strikes/procession/events opposing the recent Citizenship Amendment Act passed by the Central Government and the National Register of Citizens” (emphasis supplied), and is the outcome of reports of Deputy Commissioners “within the Bengaluru City Police Commissionerate”. Besides this claim, the order does not provide any rationale why Sec. 144 was being imposed in Bangalore, as is necessary per The Code of Criminal Procedure, various Supreme Court judgments[3] and also the Karnataka Police Manual[4].

Soon after the Sec 144 order, the Deputy Commissioner of Police (Bangalore Central) issued an order cancelling the permission granted on the ground that “the Police Commissioner, Bangalore City and Executive Magistrate Bangalore have passed prohibitory order and also have prohibited gathering of 4-5 persons in public. Hence, permission granted by this office is cancelled.” It is pertinent to note that the approval had been provided on the basis of an undertaking by Mr. Vinay Srinivas, Advocate and Coordinator of Alternative Law Forum, to “execute a bond for sum of Rs. 1,00,000/- with a solvent surety to maintain peace and order.”[5] Even as steps were taken to provide surety as directed, the permission order was withdrawn.

The backdrop in which the PILs were advanced:

All protests on the CAA/NRC issue over the past week and more, by the same organisers and also others, have all been absolutely peaceful in Bangalore. All these factors were obviously taken into account by the Deputy Commissioner (Central Division) who extended police protection for the protest, implicit in the approval letter[6]. Mr. Rao’s order effectively nullified the approval granted and also attacked peoples’ Right to Express their dissent, per Article 19 of the Constitution of India[7].

Hundreds gathered in Town Hallon the morning of 19th December. Riot police swept in and detained them. The arrested included renowned historian Dr. Ramachandra Guha who was alone protesting, holding a poster of Ambedkar, and as he was speaking to the media.[8] Scores of students, mothers, elders, and just about anyone who are troubled by the CAA/NRC, peacefully gathered to record their protest, and they too were detained. Even more gathered to register their protests, now also against the detentions, and demanding all detained be released. In the midst of all this, an incredible gesture: Deputy Commissioner of Police Mr. Chetan Singh Rathore engaged them, and sang the national anthem.[9]

The protestors were absolutely peaceful shouting patriotic slogans and condemning the CAA/NRC.[10] It was only when the police released all detained, that the large crowd which had gathered in peaceful protest, dispersed.

Proceedings in the Karnataka High Court and the decision thereof:

Chief Justice Oka and Justice Yerur heard the matter in the morning of 20th December, and then also later in the day. Advancing the concerns of the Petitioners were Senior Counsel Mr. Ravi Varma Kumar and Senior Counsel Mr. Aditya Sondhi, who were briefed by various counsels. Karnataka State was represented by Advocate General Mr. Prabhuling K Navadgi.

Senior Counsel Mr. Kumar explained how the Commissioner’s order was not merely arbitrary, but that it is “ex-facie illegal as there is no formation of opinion, which is primary requirement under S, 144. Police can only regulate the rallies/dharnas or processions, they cannot prohibit protest. It is a Fundamental Right of Citizens, guaranteed under Article 19 of the Constitution of India.” Relying on various Supreme Court orders, he submitted that the Commissioner’s order was “tailor made only against dissenters and not to maintain peace and tranquillity” and that it appears that it was “orchestrated that all Deputy Commissioners of Police sent intel” to justify imposition of Sec 144 of CrPC. Mr. Sondhi concurred saying that there ought to be a direct and proximate nexus between the anticipated problem of law and order and the order under S. 144.He also stressed on the complete extinguishing of the rights under Art. 19 as opposed to the balalncing of rights doctrine laid down by the Supreme Court.

Chief Justice Mr. Oka speaking for the Principal Bench asked the Advocate General “Are you going to ban each and every protest?” He also wanted to know how permissions granted were effectively nullified by imposing curfew, and that without adhering to “elementary principles of natural justice”. He further probed and wanted to know when a “person follows procedure comes to you (the police to take permission), you too (the police) must follow procedure” to withdraw the permission granted. He held that prima facie there was “absence of opinion” and questioned “Can the State proceed on assumption every protest will disrupt peace?” Chief Justice also expressed the situation could “go to that extent” where Section 144 of CrPC is invoked to “nullify permissions granted”.

The Advocate General defended the Police Commissioner saying his action was pre-emptive as there had been disturbances in Mangalore, and the police are worried about “infiltrators turning protest into law and order situation” based on certain intelligence reports.

On the basis of these arguments, the Court issued an interim direction stating that its finds it necessary to go into the legality of the impugned order of the Police Commissioner. The Bench clarified that “We must note here that in these petitions which are essentially filed to uphold the fundamental rights of the citizens of conducting protests in a peaceful and lawful manner, we are not concerned with the subject of protest. We are concerned with the decision making process adopted by the State Government while passing a drastic order under Section 144 of Cr.P.C., which undoubtedly, curtails the fundamental rights conferred on citizens under Articles 19 (1)(a) and 19 (1)(b) of Constitution of India. This indeed is a preventive measure. The preventive measure has the effect of depriving the citizens of fundamental rights and therefore, we will have to examine the legality of the decision making process, especially when prima facie, we find that formation of an opinion which is required under sub-section (1) of Section 144 of Cr.P.C. is not reflected from the recitals in the order”… and that too “without giving a pre-decisional or post-decisional hearing to the organizations to whom permissions have been granted under the said Regulation Order ” and all these aspects will have to be gone into. The Bench also held that “permissions which have been already granted under the said Regulation Order have worked out itself” and the “impugned order dated 18th December 2019 comes to an end at the end of the day tomorrow (21st December 2019)”. The Bench also said, “Some apprehension is expressed by the petitioners that the order may be extended. Prima facie, we find that even assuming that the impugned order is based on formation of the opinion as contemplated by sub-section (1) of Section 144 of Cr.P.C., the opinion was that a preventive order is necessary to be passed which will be effective till 21st December, 2019. Therefore, there will have to be a fresh application of mind and formation of opinion if at all there is any necessity to pass a fresh order under Section 144 of Cr.P.C.”.

Referring to the Licensing and Controlling of Assemblies and Processions (Bangalore city) Order, 2008,[11] which regulates permissions for protests, the Court felt it essential to direct the State Government to consider applications “made from tomorrow” and that “the same shall be decided within a period of three days from the date on which the applications are made”, and not fifteen days, as is stated in the said order, to process such applications. The Principal Bench concluded its interim directions by making it clear that if the State on matters relating to “depriving the citizens of fundamental rights” this Court is entitled to go into legality of the impugned order. The next date of hearing of these cases is on 7th January 2019.

(This note has been prepared by Leo F. Saldanha, one of the Petitioners. What is reported of arguments advanced and of Judicial observations and directions, is based entirely on the author’s notes. The author has strained to ensure the narration above is factual and takes comprehensive responsibility for this note.

Reports of the Court proceedings in Livelaw.in,[12] The Hindu,[13] The Times of India[14] and The News Minute[15], may also be relied on.)

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